Sunday, May 20, 2007

Howard’s Industrial Relations Laws Bad for Australia

The Howard governments Workchoices under the new Industrial Relation laws are a disaster for Australia. The laws which reduce normal reward conditions from 20 to 5, laws that allow employers to sack employees without notice or reason, and laws that reduce wages and job security with employee contracts known as A.W.A (Australian Workplace Agreement). The laws have been enacted to please the corporate and business Australia, leaving behind the hard working Australians that make up the Australian economy. Supporters for the IR changes say it is for the good of Australian workers and the growth of businesses. The laws may create more jobs, but those jobs will entail below average wages for new and current employees. Australians in this ever expanding expensive world will end up with less money to survive, while the rich get richer on the back of these Howard government IR laws. Workchoices now re-branded due to overwhelming public disapproval, will stretch the divide between rich and poor like never before. The Howard government must be ousted at the next election, for the good of Australia and her people’s future.


chloe said...

One of the most insidious aspects of the reforms relate to the unfair dismissal exemptions. Small businesses may be exempt, but big business lobbied hard to be relieved of the 'burden' of being dragged into the AIRC when dismissing employees. The 'genuine operational requirements' provisions held the promise for them to be able to dispense with the services of employees at their whim. Casual employees (long and short term) are vulnerable, indeed all employees. If the employer is able to establish a worker was 'laid off' (aka made redundant) rather than 'terminated at the behest of the employer', due to genuine operational reasons, that employee will be deprived of the opportunity to have their matter heard by the AIRC where they are unfairly terminated. They may have been unlawfully terminated eg for a prohibited reason such as union activities, discrimination etc BUT they are effectively barred from accessing remedies if they have to enforce them in other forums. Employers can get rid of dissident employees, or employees who may be at risk of injury or for any reason they like. Employer X says they won't have sex with their boss Y. Y no longer requires the services of X due to "genuine operational reasons", and it now only has to be "part" of the reason. What is disturbing is that Commissioners in the AIRC have interpreted these jurisdictional requirements so as to make the AIRC inaccessible to workers. For example, a Commissioner, who is well known for making it easy for Employers to raise operational requirements as a jurisdictional objection, recently had occasion to interpret the law when confronted by a worker who had been told that they were fired because they were 5 minutes late. The worker was not told on what occasion they were late, given an opportunity to respond, but was just summarily dismissed. The worker tried to talk to his Employer about the issue, as other employees had been late and the Employee had been working with the company for 3 years, and had an exemplary record. The Employee felt it may have been an error. The Employee however did admit to having been 5 minutes late, but was doing 12 hour consecutive shifts, filling in for other workers who were sent away after their first day by the Employer or quit after determining they could find better work conditions in prison. The Employee in question would go into work when required without any notice and was often sleep deprived. The Employer pushed the Employee to the limits of human exhaustion and the Employee complied due to the necessity of having an income. The Employee was told by the Employer 'the five minute lateness was unacceptable' but wouldn't enter into any discussion about it. The Employee therefore filed in the AIRC for unfair dismissal. Two weeks later a courier arrived with papers from the Employer's lawyers. Within those papers the Employer stated that the Employer did not terminate the employment of the Employee, rather that there was no longer a need for as many man hours at the host employer. It was therefore a "lay off". However, the problem was that this reduction of man hours only occurred (presuming it was a real reduction which is doubtful) two weeks AFTER the employee was clearly terminated for being "five minutes late" on the employer's assertion.
Obviously the "genuine operational requirements" justification was a latter construction which had been crafted by a Lawyer. The response conspicuously avoided any reference to the "termination" and the "five minute lateness". The employer merely stated that there wasn't a termination as it was a lay off.
This is misleading and questionable ethically to mischaracterise the circumstances that occurred at the time of dismissal.
The employee wished to air the facts and put the employer to their proof in terms of him clearly and unequivocally having being fired. He told the Commissioner at the conciliation "you know when you have been fired, its something you remember, they said I was five minutes late and told me not to come back because of that".
The Commissioner had been lecturing the employee about jurisdictional hurdles, and telling him that coming into the AIRC without legal representation was unwise. The Commissioner said that even without hearing any facts concerning the circumstances of the dismissal, he didn't think he would be issuing a certificate so that the case could proceed. He said that he would probably be the person determining this question, and prejudged the matter in doing so.
The employee said he was aware of the law but wanted a preliminary determination on the issue, and expected the facts to bear upon whether there was a termination rather than a lay off for GENUINE operational reasons, whether operational reasons were wholly or partly asserted as being the reason for the 'lay off'.
Firstly, he explained, it was a latter construction. The termination happened two weeks prior to the Employer becoming aware of the operational requirements. Secondly, nothing was said to the employee at the time of being dismissed about operational requirements. In fact two persons told him on behalf of the employer it was because he had done something wrong, ie he was "fired" because he was late.
The Commissioner said was prepared to accept a mere written factual assertion by the Employer that the employee had not dismissed the employee, rather their operational requirements meant they no longer required the employee's services. The commissioner wasn't even prepared to hear any oral argument on this question at the conciliation. There were four lawyers representing a huge American company on one side of the table and the worker on the other side.
As the American employee stated "I thought the jurisdiction was supposed to be accessible to workers".
The worker said "they said I was fired. They didn't say it was operational reasons".
The Commissioner's reply was "they don't have to".
The worker responded "that is enough?. They can lie".
The Commissioner did not respond, but said he didn't have to hear the parties, and that it was enough for the Employer to merely assert that there was a reduced need for employees TWO WEEKS after the "termination" occurred.
Furthermore, the Employer directly contacted the worker the day before the hearing and asked them to drop the matter. This is also highly improper.
After the conciliation, which didn't involve anything more than a lecture on being so bold to come to the AIRC without a lawyer, the worker explored the particular Commissioner's rulings on "operational requirements".
The Commissioner had taken a different view to operational requirements than many other Commmissioners, and held that it was up to the Employee to disprove an assertion by the Employer, rather than the burden of proof being on the Employer to prove that there were operational reasons.
Other commissioners, in recognition of this logistical difficulty, had reversed the burden of proof as the employee doesn't have access to the records to disprove an assertion that for instance demand dropped for a period and two or two hundred less employees were necessary.
The Employer and their four lawyers were fortunately before the right commissioner in a conciliation.
The most disturbing aspect of the case was that the Commissioner actually foreclosed any argument factually by the worker, admonished him for not bringing a legal representative and stated that latter constructions are permissible. He wasn't prepared to explore the issue that the Employer had blatantly lied, or that their lawyers had misled the Tribunal in their written response.
When the worker pointed out that he understood that legal representation was sometimes not permitted in the AIRC, and that sometimes leave was necessary for lawyers to appear, the Commissioner acknowledged this. The commissioner also acknowledged in his speech to the worker that he would be running up legal costs, that legal costs are generally not awarded against self represented litigants unless the proceedings are vexatious.
The worker felt, quite understandably, that the Commissioner didn't understand the spirit of the AIRC. It wasn't a special leave for application to the High Court. This was a jurisdiction to protect workers from unfair, harsh and unlawful practices by Employers. It was supposed to be accessible. It wasn't set up so that only the privileged could come with their four legal representatives. This was a process worker sitting across the table from four highly qualified workplace relations lawyers, not junior Solicitors. The Commmissioner displayed contempt for his own jurisdiction.
However if this is the kind of mentality which will eventually carry the day, carried to it's logical conclusion, it is akin to a person being able to murder another with intent, and then discover that they may have been able to raise a self defence argument after the fact. Of course this happens, but judges don't often kick cases out without hearing any argument on the matter of whether the person did in fact act in self defence. A mere assertion would have been enough.

Ash The Aussie said...

Thank you for your well thought out comments Chloe, very disturbing events indeed. You story clearly gives reason to why these laws should be removed. The only way to do that is to vote Howard out.

Anonymous said...

John Howard's government is backed by big business. i.e. Chamber of Commerce et all,which initself, is a 'union'.
Ironic isn't it? That most of the time the Liberal Party goes all out to destry the unions which were formed to bargain with emplyers and give the workers a fair go.
That's what Australia is.
A fair go - for everybody.
How about it John?
Do you really understand this?
Or is your head stuck up so far having to repay those who donated to your election that you ignore the concept of what being an Australian is all about?